Thornton v The Queen - [2017] NZCA 256

IN THE COURT OF APPEAL OF NEW ZEALAND

CA643/2016
[2017] NZCA 256

BETWEEN	CORNELIA GEERTRUDA ADRIANA THORNTON Appellant
AND	THE QUEEN Respondent

Hearing:	23 May 2017
Court:	Asher, Venning and Ellis JJ
Counsel:	R J Stevens and K Hadaway for Appellant J E L Carruthers for Respondent
Judgment:	16 June 2017 at 11.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

In November 2015 the complainant, following her choir practice, got into her car to drive home. After she had got into her car a person opened a rear door and climbed into the back seat, grabbed her by the hair and pulled her back violently, telling her to “shut up and drive”. The assailant put a hand around the complainant’s face and pulled her back into the gap between the front seats. The force used caused a cut to the complainant’s lip. The assailant looked the complainant in the eyes and asked her whether she wanted to “die now or later”. The complainant struggled and managed to break free. She got out of the front door and yelled for help and the police became involved.
The police formed the view that the appellant Cornelia Thornton was the assailant and charged her with breach of a protection order, threatening to kill and attempted kidnapping. At the time of the incident the complainant was the partner of Ms Thornton’s former husband. After he and Ms Thornton separated the husband had moved in with the complainant in a house that she owned. There was then a history of Ms Thornton antagonising her former husband which led to a number of convictions. The former husband had obtained a protection order against Ms Thornton. The order was made permanent in January 2015, and the complainant was added as a protected person in April of that year, some seven months prior to the attempted kidnapping.
In essence Ms Thornton’s defence at the trial was that the Crown had failed to prove that she was the assailant. After a trial in the District Court at Tauranga, Ms Thornton was found guilty by a jury and convicted. She was sentenced to two years and 10 and a half months’ imprisonment.[1] She appeals against conviction.
[1]R v Thornton [2016] NZDC 25626.
Mr Stevens, counsel for Ms Thornton, raises four alleged errors by the Judge.

Wrongful admission of propensity evidence

Ms Thornton had seven prior convictions that were the subject of a propensity decision by Judge Mabey QC.[2] Details of the seven incidents showing the date, the nature of the offence and the basic facts were summarised by the Judge in his decision and we set out that summary in an appendix to this judgment.[3]
[2]R v Thornton [2016] NZDC 20203.
[3]At [4].
The Crown sought to admit evidence of these prior convictions as establishing a propensity on the part of Ms Thornton to target the complainant and Ms Thornton’s former husband, and to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thornton v The Queen

Details

AGLC: Thornton v The Queen [2017] NZCA 256
Case: [2017] NZCA 256
Decision Date: 16 June 2017 at 11.30 am

CaseChat Overview and Summary

In Cornelia Geertruda Adriana Thornton v The Queen, Thornton appealed against her conviction for attempted kidnapping, threatening to kill, and breaching a protection order. Thornton's defence was that the Crown had failed to prove she was the assailant. The appeal raised four issues: the admissibility of propensity evidence, whether the police breached the Chief Justice's Practice Note on Police Questioning, the admissibility of identification evidence, and whether the summing-up was fair and balanced. The Court of Appeal found that the propensity evidence was highly relevant and probative, outweighing any prejudicial effect. The Court found that the police officer did not breach the Practice Note as he did not have sufficient evidence to charge Thornton at the time of the interaction. The identification evidence was deemed reliable due to the complainant's multiple opportunities to observe Thornton. The summing-up was found to be fair and balanced, properly directing the jury on the assessment of credibility and inconsistencies. The appeal against conviction was dismissed.

Orders